Delay, Without More, Will Not Warrant A Stay In Administrative Proceedings

• Published date: 12 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Bennett Jones LLP
• Author: Ms Katherine J. Fisher and Natasha O.Q. Laffin

Key Highlights

• The SCC has concluded that, unlike in criminal proceedings delay alone will not constitute an abuse of process warranting a stay in administrative proceedings.
• Short of a stay of proceedings, the SCC has highlighted that some form of remedy, such as a reduction in sanction or variation of an award of costs, should be afforded in cases of inordinate delay amounting to an abuse of process.
• In a strong dissent, Justice Suzanne C'té suggests that the SCC's strict approach "invites complacency in administrative proceedings."

In an eight to one split decision, the Supreme Court of Canada (SCC) has rendered its long-anticipated judgment regarding delay in administrative proceedings in Law Society of Saskatchewan v Abrametz [Abrametz], 2022 SCC 29. In its decision, the SCC concluded that, unlike in criminal proceedings, delay alone will not constitute an abuse of process warranting a stay in administrative proceedings.

The SCC in Abrametz was tasked with reviewing the law as previously set out by it in Blencoe v British Columbia (Human Rights Commission) [Blencoe],2000 SCC 44, and seemingly varied by the Saskatchewan Court of Appeal (SKCA) in Abrametz v Law Society of Saskatchewan [Abrametz CA], 2020 SKCA 81. In Blencoe, the SCC called for a strict approach to be applied in administrative proceedings, holding that delay, without more, will not constitute an abuse of process warranting a stay of proceedings. This was the unwavering state of the law for over 20 years, until the SKCA in Abrametz CA ostensibly proposed lowering the standard to be more in line with the SCC's decisions in R v Jordan[Jordan], 2016 SCC 27 and Hryniak v Mauldin, 2014 SCC 7, where the need for timely justice in criminal and civil cases was prioritized.

In overturning the SKCA's decision, the majority in Abrametz seemingly affirmed Blencoe, rejecting the application of Jordan-like principles in the administrative law context, and confirming the applicable standard of review as correctness. In finding that delay of roughly 6 years was "long, but not inordinate," the SCC highlighted factors for contextual review, including the nature and purpose of the proceedings, the length and causes of the delay, and the complexity of the facts and issues in the case (at para 51). The Court further held that, despite introducing evidence of prejudice resulting from media attention, practice conditions, and health and family impacts resulting from the delay, Mr. Abrametz had not...